Citation Nr: 0724942
Decision Date: 08/10/07 Archive Date: 08/20/07
DOCKET NO. 04-19 321 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUE
Entitlement to service connection for right ear hearing loss.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Courtney L. Leyes, Intern
INTRODUCTION
The appellant is a veteran who served on active duty from
December 1963 to December 1965. This matter is before the
Board of Veterans' Appeals (Board) on appeal from a January
2004 rating decision of the Roanoke, Virginia Department of
Veterans Affairs (VA) Regional Office (RO). In January 2005,
a Central Office hearing was held before the undersigned. A
transcript of the hearing is of record. The veteran had also
initiated an appeal of entitlement to service connection for
left ear hearing loss. A September 2005 rating decision
granted service connection and a 50 percent rating for such
disability. Hence, that matter is not before the Board.
[The veteran has not expressed disagreement with the rating
assigned.]
At the January 2005 Central Office hearing, left ear tinnitus
was raised. This issue was previously referred back to the
RO for adjudication by the Board in its March 2005 remand.
Since the RO has not adjudicated left ear tinnitus, the Board
is referring the issue back to the RO again for proper
adjudication.
FINDING OF FACT
Right ear hearing loss disability was not manifested in
service; sensorineural right ear hearing loss was not
manifested in the first postservice year; and any current
right ear hearing loss disability is not shown to be related
to an event, injury, or disease in service.
CONCLUSION OF LAW
Service connection for right ear hearing loss disability is
not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137,
5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304,
3.307, 3.309, 3.385 (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
A. Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, in part, describes VA's duties to notify and assist
claimants in substantiating a claim for VA benefits. See
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126;
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA
applies to the instant claim.
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative of any information,
and any medical or lay evidence, that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Proper VCAA notice must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) that the claimant is expected to provide; and (4) must
ask the claimant to provide any evidence in his or her
possession that pertains to the claim. 38 C.F.R.
§ 3.159(b)(1). VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction decision on a claim. Pelegrini v. Principi, 18
Vet. App. 112 (2004).
The veteran was advised of VA's duties to notify and assist
in the development of the claim. While he did not receive
complete notice prior to the initial rating decision, an
August 2003 letter provided certain essential notice prior to
the readjudication of his claim. Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006). An April 2005 letter explained
the evidence necessary to substantiate his claim, the
evidence VA was responsible for providing, the evidence he
was responsible for providing, and advised him to submit any
evidence or provide any information he had regarding his
claim. He has had ample opportunity to respond/ supplement
the record and is not prejudiced by any technical notice
deficiency (including in timing) that may have occurred
earlier in the process. While he was not advised of the
criteria for rating right ear hearing loss, or those
governing effective dates of awards, he is not prejudiced by
lack of such notice (See Dingess/Hartman v. Nicholson, 19
Vet. App. 473, 490-91 (2006)), as rating and effective date
criteria have no significance unless the claim is allowed,
and the decision below does not do so.
The veteran's pertinent treatment records have been secured.
Per the Board's remand, the RO arranged for a VA audiological
examination in April 2005 and a VA opinion in January 2007.
He has not identified any pertinent evidence that remains
outstanding. Thus, VA's duty to assist is also met.
Accordingly, the Board will address the merits of this claim.
B. Factual Background
The veteran's service medical records are negative for
complaints, findings, treatment, or diagnosis relating to
right ear hearing loss disability. On November 1965
separation examination, pure tone thresholds, in decibels,
were:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
10
10
10
His entrance audiometry and other November 1965 audiometry
also showed normal hearing in the right ear with no
significant puretone threshold shifts shown.
The DD Form 214 shows the veteran's primary specialty was
engineer equipment assistant. He also won an expert badge in
rifles.
The veteran submitted two private audiometry taken in
December 1999 and January 2000 by Clinical Audiology that may
indicate that the veteran has right ear hearing loss by VA
standards. However, the audiometry are in chart format which
the Board is neither competent nor authorized to interpret.
Moreover, handwritten notes on January 2000 audiometry noted
upper normal levels of hearing loss in the right ear.
At the January 2005 hearing, the veteran described his
exposure to service noise trauma in more depth. At Fort
Gordon, Georgia, he was exposed to loud noise on the rifle
range; ear protection was not provided. At Fort Campbell,
Kentucky, he experienced noise trauma when he operated five
ton graders and TD20 bulldozers. In field duty in South
Carolina, he was exposed to loud noise by operating graders
and other heavy equipment. Throughout the hearing, he
continued to emphasize that his left ear was the ear that
predominantly bothered him.
On the authorized audiological evaluation in April 2005 pure
tone thresholds, in decibels, were:
HERTZ
500
1000
2000
3000
4000
RIGHT
30
65
65
85
80
Speech audiometry revealed speech recognition ability of 90
percent in the right ear. The examiner noted that the
examination revealed a mild to severe high frequency
sensorineural hearing loss for the right ear, but did not
provide an opinion as to the etiology of the veteran's
current right ear hearing loss. The veteran reported no
post-service occupational or recreational noise exposure.
In January 2007, audiologist K.D., Ph.D. discussed the
veteran's right ear hearing loss disability and opined as to
its likely etiology. After reviewing the veteran's claims
file in its entirety, he opined that it is more likely than
not that the veteran's right ear hearing loss was not caused
by his military service. He found that because the veteran's
right ear hearing was noted as normal upon separation, there
must have been additional noise exposure between 1963 and
1999 that produced the "characteristic notch-shaped" right
ear hearing loss.
C. Legal Criteria and Analysis
Service connection may be granted for disability due to
disease or injury incurred or aggravated by active military
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Service incurrence or aggravation of organic disease of the
nervous system (to include sensorineural hearing loss) may be
presumed if such is manifested to a compensable degree within
a year of a veteran's discharge from service. 38 U.S.C.A.
§§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
Service connection may also be granted for any disease
initially diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
In order to prevail on the issue of service connection, there
must be medical evidence of a current disability; medical or,
in certain circumstances, lay evidence of in-service
incurrence or aggravation of a disease or injury; and medical
evidence of a nexus between the claimed in-service disease or
injury and the present disease or injury. See Hickson v.
West, 12 Vet. App. 247 (1999).
Hearing loss disability is defined by regulation. For the
purpose of applying the laws administered by VA, impaired
hearing will be considered to be a disability when the
auditory threshold in any of the frequencies 500, 1000, 2000,
3000, or 4000 Hertz is 40 decibels or greater; or when the
auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a fair preponderance of the evidence is
against the claim, in which case the claim is denied.
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
As noted, the record contains evidence that the veteran has
right ear hearing loss sufficient to be considered a
disability in his right ear. Furthermore, as he was an
engineer equipment assistant and worked with rifles, it may
be conceded that he was exposed to noise trauma in service.
However, there is no competent evidence that relates any
current right ear hearing disability to noise exposure in
service (or otherwise to service) or suggests such a
relationship. It is notable that the veteran emphasized left
ear hearing loss at the January 2005 hearing. There is no
competent evidence that a hearing loss disability was
manifested in service or in the first postservice year, so as
to permit a finding that such disability became manifested in
service and persisted, or to allow for application of the
chronic disease presumptions for sensorineural hearing loss
(as organic disease of the nervous system). Furthermore,
there is competent medical evidence (January 2007 opinion)
that denies any nexus between the veteran's current right ear
hearing loss disability and service. There are no medical
opinions to the contrary.
While the veteran may believe that his current right ear
hearing loss disability is related to service, as a layperson
he is not competent to opine in matters concerning medical
diagnosis and etiology. Where the determinative issue
involves medical causation or a medical diagnosis, competent
medical evidence is required. See Espiritu v. Derwinski, 2
Vet. App. 492, 294 (1992).
As the preponderance of the evidence is against there being a
nexus between any current right ear hearing loss disability
and the veteran's service, the preponderance of the evidence
is against his claim. Consequently, service connection for
right ear hearing loss must be denied.
ORDER
Service connection for right ear hearing loss is denied.
____________________________________________
T. MAINELLI
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs